FILED
NOT FOR PUBLICATION APR 04 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAX REED II, No. 14-15323
Plaintiff - Appellant, D.C. No. 3:11-cv-00066-HDM-
WGC
v.
AARON TRACY; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Argued and Submitted March 16, 2016
San Francisco, California
Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
Max Reed II appeals the district court’s decisions denying leave to amend
his complaint, granting partial summary judgment to the defendants, and excluding
certain witnesses at trial. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court did not abuse its discretion in denying Reed leave to
amend his complaint. Reed sought to add new claims and join new defendants
more than a year after expiration of the deadline to amend pleadings. The district
court reasonably concluded that Reed had not shown good cause for the lengthy
delay in seeking leave to amend, and adding new defendants would prejudice the
existing defendants and unduly delay the litigation. See Fed. R. Civ. P. 16(b)(4);
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–10 (9th Cir. 1992).
2. The district court did not err in granting summary judgment for the
defendants on Reed’s access to courts claim. Because Reed had notice that actual
injury was an issue in his case, the district court did not run afoul of Federal Rule
of Civil Procedure 56(f). On the merits, Reed failed to “demonstrate that a
nonfrivolous legal claim had been frustrated or was being impeded” in either his
criminal, habeas, or civil case. Lewis v. Casey, 518 U.S. 343, 353 (1996) (footnote
omitted). Moreover, because Reed’s criminal conviction has not been reversed on
direct appeal or otherwise invalidated, his claims related to his criminal case are
barred by Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
3. The district court did not abuse its discretion in excluding two witnesses
whom Reed wished to call at trial. The “district court is vested with ‘broad
discretion to make discovery and evidentiary rulings conducive to the conduct of a
2
fair and orderly trial,’” Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996)
(quoting Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980)), and it
“may exclude testimony from witnesses not listed in the pretrial witness list,” Price
v. Seydel, 961 F.2d 1470, 1474 (9th Cir. 1992). Reed failed to file a pretrial order,
and neither excluded witness was essential to his case: Anthony Thomas lacked
personal knowledge of the retaliatory search at issue, and Peter Petzing’s testimony
would have been largely cumulative of the testimony and emails already in
evidence. Thus, Reed was not prejudiced by the district court’s decisions.
AFFIRMED.
3